Journal of Environmental Law & Litigation : Vol. 25, no. 2 (Fall 2010)

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    Journal of Environmental Law & Litigation : Vol. 25, No. 2, p. 559-582 : NEPA and Climate Change: Beneficial Applications and Practical Tensions
    (University of Oregon School of Law, 2010) Kraft, Aaron J.
    This Comment explores the benefits and problems of requiring agencies to consider climate change in their NEPA analyses. Part I presents an overview of NEPA, including statutory language, agency duties, and regulations that detail specific agency requirements. It then addresses the prospect of challenging federal action when agencies fail to consider climate change. Finally, it discusses the role of NEPA in agency decision making, relevant case law, and the issue of standing in NEPA-based climate change litigation. Part II discusses the impact of probable congressional action on climate change and how that may affect agencies’ NEPA responsibilities. It discusses how courts should construe NEPA in the event Congress enacts climate legislation, and considers the role of agency discretion in the face of carbon regulation. Part III considers the increased demand for renewable energy in a carbon-regulated world and whether federal agencies may use climate change to justify development on wild public lands through their required NEPA analysis. This part addresses agency discretion to allow public land development and highlights the need for comprehensive policies that recognize the value of unaltered ecosystems. Specifically, it considers agency action in the context of National Wildlife Refuges and unprotected, wilderness-quality BLM-managed lands. Finally, Part IV concludes that federal agencies must consider climate change in their decisions. It argues that citizens should challenge agencies for failing to address climate considerations. But citizens must not allow the tremendous threat of climate change to justify irresponsible energy development, which itself would destroy natural places and invaluable ecosystem services.
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